Benson v. Rosine

• Decision Date: 11 June 1945
• Citation: 76 Ohio App. 439,64 N.E.2d 845
• Parties: BENSON v. ROSINE.
• Court: Ohio Court of Appeals

64 N.E.2d 845

76 Ohio App. 439

BENSON v. ROSINE.

Court of Appeals of Ohio, Sixth District, Lucas.

June 11, 1945

Syllabus by the Court.

1. The filing of a cross-petition for a money judgment in an action by an administrator is not the presentation of the asserted claim to the administrator as required by Sections 10509-112 and 10509-113, General Code, even if it is filed within four months of the appointment of the administrator.

2. In an action by an administrator to recover on a contractual obligation, a judgment on a cross-demand cannot be had unless the cross-claimant has complied with Sections 10509-112 and 10509-113, General Code, and presented such claim to the administrator for allowance as therein required.

3. A cross-demand in an action by an administrator may be pleaded as a defense to the extent it may be deemed to compensate the claim sued upon by the estate even though it has not been presented to the administrator for allowance.

4. A cross-petition pleading an unpresented cross-demand in an action by an administrator is not subject to demurrer even though such demand may not be the subject of an independent judgment against the estate, but such pleading may stand as an affirmative defense to the estate's claim, or such part thereof as it may be deemed to compensate.

See also 15 Ohio Supp. 28.

Faber J. Drukenbrod, of Canton, and Dudley F. Smith, of Toledo, for appellant.

Mark Winchester, of Toledo, for appellee.

CARPENTER Judge.

On sustaining a demurrer to a third amended cross-petition, the trial court dismissed it, and from that judgment this appeal on questions of law was taken.

The petition alleged that on March 29, 1944, the plaintiff, Helen Benson, was appointed administratrix of the estate of Russell Benson, who died on March 24, 1944. As such, she brought this action to recover $3,685.65 which she claims was the balance due to the estate from the defendant on a contract made on June 1, 1943, between her decedent and the defendant whereby Benson sold to the defendant 'his business, equipment and franchise for the distribution of a soft drink known as 'Seven-Up" in Toledo and vicinity. The purchase price was $11,500.

The answer, filed on May 10, 1944, admitted the contract, but alleged that in some details it was not performed by Benson and that defendant had paid $3,000 more than the value of the property he had received. By cross-petition, he asked a judgment for that amount.

On June 3, 1944, an amended answer and a cross-petition were filed. That answer admitted the making of the contract and alleged that Benson had misrepresented the volume of the business and had failed to deliver the franchise for the territory and certain equipment. The cross-petition alleged that defendant had paid $9,066.07 of the purchase price and that he had been damaged $5,000 by reason of the failure to receive the franchise; $2,525 by the misrepresentation as to the number of customers; $345 as to the value of the equity in the real estate; and $170 by delay in the delivery of a truck included in the deal. For all of this he asked judgment for $8,040 as damages.

A demurrer to the amended cross-petition was sustained for the reason that it did not allege the claim contained therein against the estate had been presented to the administratrix within four months of her appointment as required by Section 10509-112, General Code.

A second and a third amended cross-petition alleged substantially the same claims, and alleged further that the answer and cross-petition filed on May 10, 1944, was a presentation of the claim to the administratrix, and that on November 29, 1944, defendant had made demand in writing on the administratrix to allow the claim within five days, which she failed to do.

Demurrers to each of these were sustained for the same reason the demurrer was sustained to the amended cross-petition, and defendant not wishing to try again, the third amended cross-petition was dismissed.

That judgment was based upon certain sections of the Probate Code the material parts of them being as follows:

Section 10509-112, General Code; 'All claimants shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after the date of the appointment of the executor or administrator. Every claim presented hereunder shall set forth the claimant's address. In the absence of any prior demand for allowance, the executor or administrator shall allow or reject all claims within thirty days after their presentation; * * *.'

Section 10509-113, General Code: 'The executor or administrator shall reject a claim by giving the claimant written notice of the disallowance thereof. * * * A claim shall be deemed rejected if the executor or administrator, on demand in writing by the claimant for an allowance thereof within five days * * * fails to give to the claimant, within such period, a written statement of the allowance of such claim. * * *'

Section 10509-133, General Code: 'When a claim against an estate has been rejected in whole or in part, but not referred to referees, or when a claim has been allowed in whole or in part and thereafter rejected, the claimant must commence an action on the claim or that part thereof rejected, within two months after such rejection * * * or be forever barred from maintaining an action thereon; * * *.'

The defendant contends that his cross-petition and amended cross-petition, both of which were filed within four months of the appointment of the administratrix, constituted a compliance with Section 10509-112, General Code. This would put 'the cart before the horse.' The pretentation of the claim and its rejection are conditions precedent to the bringing of the action, and the assertion of the claim on a cross-petition for a judgment was a bringing of an action. The court did not err in sustaining the demurrer to the cross-petition as such.

But this did not dispose of the only problem in the matter. Although the defendant's claim as stated in his third amended cross-petition was not available to him for an independent judgment against the estate, could it stand as an affirmative defense to all or any part of plaintiff's claim?

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